Commissioner Balks on Cost of Juvenile Court Reforms

The Shelby County Commission's chair-elect says the county may not be willing to pay for the federally mandated overhaul of Shelby County Juvenile Court since they were not consulted sooner. "If, in fact, you expect us to help with a bunch of money, why would you not have included us in the process?" Mike Ritz said. The proposed changes, which could run into the millions of dollars, would create new positions, including full-time juvenile public defenders and a court-based disproportionate minority contact coordinator who would work to reduce the number of black youths brought to court, held in jail and transferred to adult court. DOJ staff attorneys are expected to return to Memphis this fall to work on a "comprehensive blueprint" with Juvenile Court staff, the Commercial Appeal reports.

Today's Opinions

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The widow of a man who suffered a devastating injury while undergoing a medical procedure in the defendant hospital filed suit against the hospital and the doctor who ordered the procedure, claiming medical malpractice, failure to obtain informed consent, and battery. The defendant hospital filed a motion for summary judgment, and the defendant doctor filed a motion to dismiss, both arguing that the plaintiff’s malpractice claims had to be dismissed because she failed to strictly comply with requirements of the Medical Malpractice Act, specifically Tenn. Code Ann. § 29-26-121 (a)(1) (60-day notice) and §29-26-122(a) (certificate of good faith). The trial court granted both motions in part and denied them in part. We reverse the trial court’s dismissal of the medical malpractice claims against both defendants as well as the related claims. We also reverse the trial court’s dismissal of the claim against the defendant doctor for failure to obtain the patient’s informed consent, but we affirm its dismissal of the medical battery claim against the defendant doctor.

Father has a son who was placed in the custody of his maternal grandmother when he was ten months old because Mother was deceased and Father was incarcerated. Grandmother filed a petition for termination of Father’s parental rights. Following a hearing the trial court determined Father had abandoned his child as that term is defined by Tenn. Code Ann. §36- 1-102(1)(A)(iv) and that it was in the child’s best interests for Father’s parental rights to be terminated. Father has been incarcerated for all but five months of the child’s life and has engaged in conduct that exhibits his wanton disregard for his son’s welfare. The child has no meaningful relationship with Father due to Father’s life choices, which have resulted in repeated arrests and periods of incarceration. We agree with the trial court that Father has abandoned his child and that it is in the child’s best interest for Father’s parental rights to be terminated. We therefore affirm the trial court’s judgment.

TN Court of Criminal Appeals

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Rob McGuire, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

Petitioner, Joshua Jameel Bond, filed this petition for post-conviction relief challenging his 2009 guilty-pleaded conviction for second degree murder, which was amended from first degree murder. Petitioner agreed to an out-of-range sentence of forty years. As grounds for relief, petitioner argues that trial counsel was ineffective for failing to investigate certain witnesses and evidence and that he was unaware of the nature and consequences of his guilty plea. The post-conviction court conducted an evidentiary hearing and denied relief. Our review of the record and the parties’ briefs reveals no error; thus, we affirm the judgment of the post-conviction court.

A Bedford County Grand Jury returned an indictment against Defendant, Richard Dale Capps, charging him with two counts of aggravated assault and one count of conspiracy to commit aggravated assault. An indictment was also returned against co-defendant Sarah Malone charging her with conspiracy to commit aggravated assault. The present appeal only involves Defendant. Following a joint jury trial, Defendant was convicted of aggravated assault, reckless aggravated assault, and conspiracy to commit aggravated assault. Codefendant Malone was convicted as charged. Defendant was sentenced as a Range II offender to eight years for aggravated assault and six years for conspiracy to commit aggravated assault with the sentences to be served concurrently in confinement. Defendant’s conviction for reckless aggravated assault merged with his conviction for aggravated assault. On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred in denying his request to admit the prior inconsistent statements of Andrew Pugh and Maurice Smith as substantive evidence; and (3) that the trial court improperly sentenced Defendant as a Range II offender because the State did not give timely notice of its intent to seek enhanced punishment. After a thorough review, we affirm the judgments of the trial court.

A Davidson County jury convicted the Defendant, Joseph Bernette Driver, of facilitation of aggravated robbery and evading arrest. The trial court sentenced the Defendant, a Range I standard offender, to six years for the facilitation of aggravated robbery conviction and a concurrent term of eleven months and twenty-nine days for the evading arrest conviction. On appeal, the Defendant contends that: (1) the trial court erred in denying his motion to suppress the show-up identification; (2) the evidence is insufficient to support his conviction for facilitation of aggravated robbery; and (3) the trial court erred by imposing the maximum sentence for the conviction of facilitation of aggravated robbery. After a thorough review of the record and relevant authorities, we affirm the judgments of the trial court.

B. Jeffrey Harmon, District Public Defender; and Philip A. Condra, Assistant District Public Defender, for the appellant, Eric Lebron Hale.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; J. Michael Taylor, District Attorney General; and Julia Veal and David McGovern, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WITT

A Marion County Circuit Court jury convicted the defendant, Eric Lebron Hale, of aggravated robbery, and the trial court imposed a sentence of 17 years’ incarceration. In this appeal, the defendant challenges the sufficiency of the convicting evidence and contends that the jury instructions provided by the trial court resulted in an improper constructive amendment to the indictment, that a fatal variance existed between the indictment and the proof adduced at trial, that the trial court erred by admitting the testimony of a certain witness, that the trial court committed errors in jury instructions granted and refused, and that the cumulative effect of the errors deprived him of the right to a fair trial. Because the evidence was insufficient to support the defendant’s conviction of aggravated robbery as it was charged in the indictment, and because the jury instructions on the offense of aggravated robbery resulted in an improper constructive amendment of the indictment, and because a fatal variance existed between the indictment and proof adduced at trial, the defendant’s conviction of aggravated robbery is reversed. In its stead we impose a conviction of the lesser included offense of theft of property valued at $500 or less and remand the case to the trial court for a sentencing hearing on the newly-imposed misdemeanor conviction.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Theresa McCusker and Kirby May, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: PAGE

A Shelby County jury convicted petitioner, Brenda Holliman, of first degree murder and conspiracy to commit first degree murder. The trial court sentenced her to life imprisonment without the possibility of parole. Subsequently, she filed the instant petition for a writ of error coram nobis, claiming that a co-defendant recanted statements he made at his guilty plea hearing and that the recantation constitutes newly discovered evidence. The coram nobis court summarily dismissed the petition based on the statute of limitations. Following our review, we reverse the judgment of the coram nobis court and remand the matter for an evidentiary hearing.

The Petitioner, Jerry Lee Hunter, appeals the Marshall County Circuit Court’s denial of postconviction relief from his conviction for especially aggravated robbery, for which he is serving an eighteen-year sentence. The Petitioner contends that his entry of a guilty plea was unknowing, involuntary, and unintelligent because he did not receive the effective assistance of counsel. We affirm the judgment of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Russell Johnson, District Attorney General; Frank Harvey, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, James Edward Kilby, III, pled guilty to felony reckless endangerment and reckless aggravated assault. For the felony reckless endangerment conviction, the trial court imposed a two-year sentence, ordering the Defendant to serve six months of incarceration before release to the community corrections program. For the reckless aggravated assault conviction, the trial court imposed a four-year sentence, ordering the Defendant to serve eleven months and twenty-nine days of incarceration before release to the community corrections program. The trial court ordered that these sentences be served consecutively, for a total effective sentence of six years, to serve eighteen months of incarceration followed by community corrections. In this appeal, the Defendant contends the trial court improperly ordered the Defendant to serve more than one year in split confinement. After a thorough review of the record and relevant authorities, we conclude that the trial court erred when it sentenced the Defendant. As such, we reverse the trial court’s judgments and remand the cases for a new sentencing hearing.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Mike Bottoms, District Attorney General; and Brent A. Cooper, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge: HARRIS

Appellant, Larry D. McGuire, was indicted by the Maury County Grand Jury for felon in possession of a handgun. After a guilty plea, Appellant was sentenced to two years in incarceration as a Range II, multiple offender. After several months in incarceration, Appellant was granted determinate release. Subsequently, a probation violation warrant was filed. Appellant’s probation was partially revoked for time served and Appellant was reinstated to a new, two-year term of probation. A second probation violation warrant was filed. After a hearing, Appellant’s probation was revoked. The trial court ordered him to serve his sentence in confinement. Appellant appeals, claiming that the trial court erred in determining that he violated his probation and ordering that he serve the sentence in incarceration. After a review of the record and authorities, we conclude that the trial court did not abuse its discretion in revoking Appellant’s probation. Consequently, the judgment of the trial court is affirmed.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; John Carney, District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

The capital Petitioner, William Glenn Rogers, appeals as of right from the post-conviction court’s order denying his initial and amended petitions for post-conviction relief challenging his merged first degree murder conviction and death sentence for the killing of nine-year-old Jacqueline Beard, as well as his convictions for especially aggravated kidnapping, rape of a child, and two counts of criminal impersonation. The Petitioner received an effective sentence of forty-eight (48) years’ imprisonment for his non-capital offenses. On appeal, the Petitioner claims that the post-conviction court erred in denying relief because defense counsel provided ineffective assistance in both the trial and appellate proceedings related to these convictions and sentences and because multiple other constitutional violations call into question the validity of these convictions and sentences. After a careful and laborious review of the record, we affirm the denial of post-conviction relief.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Judge: BIVINS

Harold Bernard Schaffer (“the Defendant”) was convicted by a jury of first degree felony murder. The trial court subsequently sentenced the Defendant to life imprisonment. In this direct appeal, the Defendant contends that (1) the trial court erred in denying his motion to dismiss the indictment; (2) the trial court erred in denying his motion to suppress evidence; (3) the State engaged in prosecutorial misconduct during closing argument; and (4) the evidence is not sufficient to support his conviction. After a thorough review of the record and relevant authorities, we affirm the trial court’s judgment.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; T. Michel Bottoms, District Attorney General; and Kyle Dodd and Patrick Powell, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: PAGE

A grand jury indicted appellant, Michael Jarvis Shipp, for one count of first degree murder and one count of especially aggravated robbery. A jury found him guilty of first degree murder and the lesser-included offense of aggravated robbery, for which the trial court imposed concurrent sentences of life and eight years, respectively. On appeal, appellant challenges the sufficiency of the convicting evidence underlying both counts. We find that the evidence was sufficient to convict appellant on both counts and affirm the judgments of the trial court.

The defendant, Bobby Lewis Smith, was convicted by a Clay County jury of delivery of a schedule III controlled substance, a Class D felony. He was subsequently sentenced, as a Range III offender, to serve nine years in the Department of Correction. On appeal, he contends: (1) that the evidence is insufficient to support the verdict; (2) that the trial court erred in allowing admission of a videotape in violation of the Confrontation Clause and authentication rules; and (3) that ordering service of the nine-year term resulted in an excessive sentence. Following review of the record, we affirm the judgment of the trial court.

Robert Brooks, Memphis, Tennessee, for the appellant, Patrick Trawick.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Betsy Wiseman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Patrick Trawick, appeals the denial of his petition for post-conviction relief, arguing that his trial counsel provided ineffective assistance by advising him not to testify at trial, which precluded him from presenting his only viable defense. Following our review, we affirm the denial of the petition.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; H. Greeley Welles, Jr., District Attorney General; and Laura Rayment, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Defendant, Charles Reginald Underwood, Jr., appeals the trial court’s revocation of his community corrections sentence and the imposition of a sentence of confinement. Following our review of the record, we affirm the judgment of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; James G. (Jerry) Woodall, District Attorney General; and Angela R. Scott, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Charles W. White, Sr., was convicted of driving under the influence (“DUI”) by a Henderson County Circuit Court jury and sentenced to eleven months and twenty-nine days, with all but forty-eight hours suspended. His driver’s license was also suspended for one year for violation of the implied consent law. On appeal, he challenges the trial court’s denial of his motion to suppress the stop of his vehicle. After review, we affirm the judgment of the trial court.

Today's News

Legal News

Colloms Lauded for Distinguished Legal Career

Carl E. Colloms retired last week from a legal career he began as a young lawyer in 1966. Since then his courtroom career has ranged from Bradley County attorney to Charleston city judge, six years as a trial lawyer and, finally, many years as the child support master for family courts in Bradley, Polk, Monroe and McMinn counties. "Things have changed a whole lot since 1974," Tennessee Supreme Court Justice Sharon Lee told the crowded room of how Collums was the only Republican elected in Bradley County then. "I didn't always win my cases before Judge Colloms," Lee said. "Sometimes I went back to my office and my client went to jail. But I never left feeling disappointed or that justice was not served." The Times Free Press was there

Lightning Damages West Tenn. Criminal Justice Complex

Lightning struck the Henderson County Criminal Justice Complex in Lexington in west Tennessee on Sunday morning, causing damage estimated in the tens of thousands of dollars, the Jackson Sun reports. The strike destroyed the complex's fire alarm system, electronic key system, National Crime Information Center records system and the 911 system.

Judge Binkley Gives Oath to Judge Binkley

Judge Michael W. Binkley was sworn in to the Circuit Court of the 21st Judicial District by his brother, Judge Joe P. Binkley Jr. on Friday at Franklin’s historic downtown courthouse. Mike Binkley is a lawyer with more than 30 years' experience. Joe Binkley serves one county over, in the 5th Circuit Court of the 20th Judicial District. The Tennessean has more

Lee Swears-In Wade

Before receiving the oath of office on Saturday, new Tennessee Supreme Court Chief Justice Gary R. Wade was praised for his service as an attorney, mayor of Sevierville, judge and since 2006, a justice of the Supreme Court. Justice Sharon G. Lee gave the oath of office to him at the Sevier County Courthouse. In an interview, Wade said that becoming chief justice was not a primary aspiration in his early career. "My first objective," he said, "was to complete law school. Then pass the bar. Then to make sure there was nothing in my past to disqualify me from becoming a notary public. What came after that was the cherry on top." The News Sentinel has the story and pictures

Stanton Works to Keep Politics Out of Job

In this interview with the Memphis Flyer, Ed Stanton III talks about the politics of what he calls his "apolitical role" as United States attorney for the Western District. In addition, he discusses the Fayette County and Shelby County schools cases, and domestic and international terrorism.

Highlander Celebrates 80 Years

The Highlander Research and Education Center celebrated 80 years of social justice this weekend with residential workshops, food, art and movies. Civil rights leader Rosa Parks first came to Highlander four months before she refused to give up her bus seat. Parks was already a dedicated activist when she spent two weeks at the center and was astonished by the cooperation among people of all races, according to the center's executive director, Pam McMichael. "She talked about how seeing black and white people working together, talking together, eating together really gave her hope that it could be that way, that things could change." The News Sentinel has more

Citing 1st Amendment, Funding Restored to U of M Newspaper

The University of Memphis is restoring full funding to its student newspaper after an internal review found the newspaper's content may have been a factor in its funding being cut, WDEF reports. University President Shirley Raines ordered the review after staff members at the Daily Helmsman criticized the budget committee's recommendation to cut funding as a violation of the First Amendment. Raines said in a statement Friday that interviews with members of the Student Fee Allocation Fund Committee found that newspaper content was discussed, which led to the appearance that it may have been a factor in the recommendation.

Election 2012

Lawsuits May Impact Election

A series of court battles in several states may determine, over the next several weeks, everything from how people cast their votes, when polling locations will be open and what ballots will look like. Many cases have a partisan bent, with rulings potentially tipping the scales slightly in favor of Democrats or Republicans. WMCT has this AP story

General Assembly News

Surgeon Considers Run for Campfield's Seat

State Sen. Stacey Campfield, R-Knoxville, is in the middle of a four-year term but Knox County Commissioner Richard Briggs has expressed new interest in seeking his 7th Senate District seat in 2014, the News Sentinel reports. Briggs, a Repubilcan, is a cardiothoracic surgeon and retired Army colonel who has served in active and reserve units. He says he will wait until after the Nov. 6 elections before making a decision.

BPR Actions

Memphis Lawyer Disbarred

Memphis lawyer Michael E. Latimore was disbarred by the Tennessee Supreme Court Aug. 31. He failed to account for settlement proceeds and to make timely distribution to a third party; used the settlement funds for his personal benefit; failed to communicate with his clients; and then abandoned his practice. Download the BPR release

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.